Friday, 31 August 2012

Fired After Maternity Leave

An Ontario employer cannot fire an employee while she is on maternity leave simply because she is on maternity leave. Ontario law protects the employee’s position while she is away. But, what happens when an employee who has been on maternity leave returns and is then terminated?

The Rules of Pregnancy Leave and Parental Leave

Note: although I am using the term “maternity leave” in this post and the pronoun “she,” the rules respecting pregnancy leave and parental leave apply the same to both parents and both genders. Men are equally protected by the provisions of the Employment Standards Act, 2000

The Rules Surrounding Returning to Work after Parental Leave

Once an employee’s pregnancy and parental leave are done, if the employee wishes to return to the workforce, she generally has the legal right to her old job back. Section 53 of the Ontario Employment Standards Act, 2000 provides that:

Upon the conclusion of an employee’s leave under this Part [Part XIV, Leaves of Absence], the employer [is required to] reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

Subsection 53(3) protects the employee’s wage rate and the right to salary increases.

However, an employer does not have to give back an employee’s previous
job or a comparable job if the employer’s reasons for ending the employment are totally unrelated to the leave. The question of why the employee was terminated upon her return from leave is one of fact: Was the fact that the employee took leave a factor in the decision to fire her?

If the employee believes that she was terminated because she took leave, then, in addition to other remedies that she may have at law, that employee can file a claim with the Ontario Ministry of Labour. For information with respect to filing such claims, see the Ministry of Labour’s website, here. The employee may also consider making an application to the Human Rights Tribunal of Ontario for a violation of the employee’s human rights.

Reprisals

If an employee is fired because she took maternity leave, an Ontario Ministry of Labour Employment Standards Officer has the power, pursuant to section 104 of the Employment Standards Act, 2000, to order the employer to reinstate the employee to her old position..

Taking pregnancy leave and parental leave are rights protected by the Employment Standards Act, 2000. Part XVIII, Paragraph 74(1)(a) (iv) of that law provides that:

No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee exercises or attempts to exercise a right under this Act.

Section 104 of the ESA provides that:

If an employment standards officer finds a contravention of any of the following Parts with respect to an employee, the officer may order that the employee be compensated for any loss he or she incurred as a result of the contravention or that he or she be reinstated or that he or she be both compensated and reinstated… Part XVIII (Reprisal).

Section 74(2) of the ESA further assists the employee by providing that:

Subject to [certain provisions,] in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.

I Am an Employee and I've Been Dismissed: What Do I Do?

If you are an employee that has been recently dismissed by your employer while on maternity leave or after returning from maternity/pregnancy/parental leave, the first thing to do is to seek legal advice. For those in Eastern Ontario and the Greater Toronto Area who need assistance, you may email me at sbawden@kellysantini.com.

I Am an Employer and I Want to Dismiss a Returning Employee: What Do I Do?

The reality is that there may be times when, for a number of reasons, an employer wishes to terminate a returning employee. The most common reason is that the person hired temporarily to fill the absent employee’s position is perceived to be better than the employee that was replaced.

Tricky situations develop and, again, the prudent thing to do is obtain legal advice specific to your situation. While it may be possible to terminate the returning employee, allegations of reprisal are serious and can be costly. It may be far wiser to seek advice as to pragmatic alternatives.

Still Unsure?

Sean Bawden, a labour and employment lawyer at Ottawa’s Kelly Santini LLP would be happy to be of service to you with respect to this issue or any other labour and employment law question. You can reach him by email at: sbawden@kellysantini.com or by phone at 613-238-6321.

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.